Imam, R (on the application of) v London Borough of Croydon [2023] UKSC 45

Ms Imam, a wheelchair user with three children, was owed a housing duty by Croydon Council under section 193(2) of the Housing Act 1996. Despite acknowledging the breach for nearly six years, Croydon failed to provide suitable accommodation. The Supreme Court clarified when mandatory orders should be granted against housing authorities citing resource constraints.

Facts

Ms Imam, a full-time wheelchair user and mother of three children, applied to Croydon Council for homelessness assistance in February 2014. Croydon accepted it owed her a duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation. In September 2014, she was offered temporary accommodation which lacked a level-access toilet on the first floor suitable for her night-time needs. Croydon accepted in June 2015 that the property was unsuitable but failed to provide alternative suitable accommodation. Croydon admitted being in breach of its statutory duty from June 2015 onwards.

The Property

The property had positive features including wheelchair access via a ramp, an internal lift, appropriate size for the family, and suitable location. However, it lacked adequate toilet facilities for Ms Imam’s needs, causing her distress and humiliation due to incontinence issues.

Issues

The central issue was whether, and in what way, limits on the resources of a local housing authority should affect the exercise of a court’s discretion when granting a mandatory order where the authority is in breach of its duty under section 193(2) of the Housing Act 1996.

Judgment

The Supreme Court dismissed Croydon’s appeal. Lord Sales, delivering the unanimous judgment, established important principles regarding mandatory orders against housing authorities.

The Statutory Duty

The duty under section 193(2) is owed personally to the individual applicant and is immediate, non-deferrable and unqualified. Lord Sales stated:

The starting point is that Croydon is subject to a public law duty imposed by Parliament by statute which is not qualified in any relevant way by reference to the resources available to Croydon.

Resources and Impossibility

The Court held that general budgetary constraints cannot justify non-compliance with a statutory duty. Lord Sales explained:

When it is established that there has been a breach of such a duty, it is not for a court to modify or moderate its substance by routinely declining to grant relief to compel performance of it on the grounds of absence of sufficient resources. That would involve a violation of the principle of the rule of law and an improper undermining of Parliament’s legislative instruction.

However, the Court recognised that remedies in public law are discretionary and that impossibility of compliance may be relevant. The authority bears the onus to explain why a mandatory order should not be made and must show it has taken all reasonable steps to perform its duty.

Relevant Factors

The Court identified factors relevant to exercising discretion: whether contingency funds exist; whether the authority was on notice but failed to act; the extent of impact on the individual; whether the authority is moving to rectify the situation; and fairness to others also dependent on the authority for accommodation.

Priority of Duties over Discretions

Citing R v East Sussex County Council, Ex p Tandy, Lord Sales emphasised that authorities must prioritise statutory duties over discretionary functions:

A public authority which has limited resources available for use to meet its statutory duties and to fulfil functions which are merely discretionary is obliged to give priority to using them to meet its duties.

Implications

This judgment significantly clarifies the law on mandatory orders against housing authorities. It confirms that resource constraints cannot generally excuse non-compliance with statutory housing duties, whilst recognising the court must balance enforcement with avoiding undue disruption to an authority’s overall functions. Authorities must provide detailed evidence explaining their position and cannot rely on general assertions about budgetary pressures. The distinction between statutory duties (Part 7) and discretionary functions (Part 6 allocations) is crucial when assessing available resources. The case was remitted for reconsideration with fresh evidence.

Verdict: Appeal dismissed. The case was remitted to the High Court for further consideration with fresh evidence, with both parties permitted to adduce new evidence regarding the availability of suitable accommodation and the steps taken by Croydon to comply with its statutory duty.

Source: Imam, R (on the application of) v London Borough of Croydon [2023] UKSC 45